by
Jill Paperno,
Special Assistant Monroe County Public Defender

In a very important decision People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals, by a 6-1 vote, reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that

Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.

This decision will have a huge impact for all of those who handle criminal trials, and especially those who try child sex offense cases. Often, the arguments made by the prosecution during summation are improper, but it is hard to articulate why, and object in time. In Fisher, a case won by Assistant Monroe County Public Defender Janet Somes, the Court provides some guidance. If you handle child sex offense cases you must read this decision. But until then, here are some quick highlights.

Commenting on Facts Not in Evidence

1. The prosecutor's summation "improperly encouraged inferences of guilt based on facts not in evidence." So be ready to object on those grounds. Specifically, the Court noted that

A. "(W)ithout record basis for referring to prior consistent statements by the complainants, no such statements having been admitted in evidence... the prosecutor bolstered her young witnesses' credibility by describing in extended fashion the 'long road' they had traveled in advance of their trial appearances in the course of which 'they said the exact same thing over and over and over again' to the police, social workers, doctors and the Grand Jury."

This is an argument you will hear time and again. Be ready to respond, and even cite this case during your objection.

B. "Continuing, the prosecutor, essentially testifying, improperly advised the jury that it could view evidence of the complainants' contemporaneous misbehavior at school as proof that the crimes occurred."

Minimizing the Benefit Conferred on an Informant

2. The Court finds the testimony of a jailhouse snitch "crucial to confirming the young children's accounts", and that the "(h)azard of an improperly founded, erroneous conviction was further heightened by the prosecutor's less than frank minimization of the consideration (the informant) was to receive in exchange for his potentially pivotal testimony as to defendant's jailhouse admissions...While it was literally true that the prosecutor, as she asserted in her summation, was not the Parole Board and did not 'control what happen[ed] to (the informant),' the none too subtle suggestion that the prosecutor's letter to the Board on (the informant's) behalf was merely a courtesy and conferred no real benefit to be weighed in assessing (the informant's) credibility, was materially misleading; the prosecutor was plainly in a position, if not to control, at least to influence the outcome of (the informant's) parole violation hearing."

Inflaming the Passions of the Jury

3. And of course, the dramatic and improper exhortation that the jury think of the children - "Finally, in her peroration, the prosecutor exhorted, '[t]he voice of a child is evidence, the testimony of two children is evidence. The day that the voice of a child is not evidence is the day that those doors [the doors to the courtroom] should be locked forever.' Obviously, it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice."

One of the reasons that this decision is so important is that these are not the isolated errors of a rogue prosecutor who no longer works for the DA's Office. These are the types of arguments that are made every day and go without objection by defense counsel or without correction by the courts. This is one in a series of decisions issued by New York and federal courts criticizing the way prosecutors handle sex offense cases. Attorneys must keep objecting and making a record for appeal. Attorneys who don't object, even after Fisher, risk being found to have been ineffective.